Jepkemei v Makatiani t/a Benwill Traders Auctioneers & 2 others; Areri (CM, Eldoret Law Courts) (Interested Party) (Miscellaneous Civil Application E340 of 2025) [2026] KEHC 5569 (KLR) (21 April 2026) (Ruling)

REPUBLIC OF KENYA IN THE HIGH COURT AT ELDORET MISC. CIVIL APPLICATION NO. E340 OF 2025 IN THE MATTER OF: ARTICLE 165(6) & (7) OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF: THE SUPERVISORY JURISDICTION OF THE HIGH COURT OVER THE CHIEF MAGISTRATE’S COURT AT ELDORET AND IN THE MATTER OF: THE PROTECTION OF THE RIGHT TO PROPERTY AND FAIR ADMINISTRATIVE ACTION UNDER ARTICLES 40 AND 47 OF THE CONSTITUTION AND IN THE MATTER OF: ELDORET CMCC MISC. APPLICATION NO. E242 OF 2025 AND IN THE MATTER OF: THE UNLAWFUL SEIZURE OF LIVESTOCK BETWEEN PRISCILA JEPKEMEI ……………………....................................... APPLICANT =VERSUS= BENARD ANALO MAKATIANI t/a BENWILL TRADERS AUCTIONEERS ………………………..... RESPONDENT STARWAYS CAPITAL LIMITED …………………………………. RESPONDENT MERCY CHELIMO …………………………………………………… 3RD RESPONDENT HON. PETER ARERI (CM, ELDORET LAW COURTS) …… INTERESTED PARTY 2ND 1ST Coram: Justice R. Nyakundi M/s Emmanuel Kipkurui & Co. Advocates. M/s Alvin Nyongesa & Co. Advocates. RULING 1. Before me for determination is a Notice of Motion dated 16th October, 2025 brought under the provisions of Art. 22, 23, 40, 47, 48 and 165(6) MISC. CIVIL APPLICATION NO. E340 OF 2025 1 & (7) of the Constitution, Sections 1A, 1B, 3A & 80 of the Civil Procedure Act. The Applicant seeks orders as follows: a. Spent. b. That pending the hearing and determination of this application, this Honorable Court bed pleased to issue a conservatory order restraining the Respondents, whether by themselves, their servants, agents, auctioneers, or any person acting under their instructions, from selling, slaughtering, disposing of, or otherwise interfering with the applicant’s five(5) cows one being pregnant and due to calve, which were unlawfully seized on 11th October, 2025 from the applicant’s homestead at Mosoriot, Nandi County. c. That this Honorable Court be pleased to exercise its supervisory jurisdiction under Art. 165(6) & (7) of the Constitution and call up the record of Eldoret Chief Magistrate’s Court Misc. Application No. E242 of 2025 for purposes of satisfying itself as to the legality, property, and correctness of the proceedings and the directions issued therein on 21st October, 2025. d. That this Honorable Court be pleased to note and correct the apparent omission by the Chief Magistrate’s Court in failing to issue any interim orders preserving the subject matter or maintaining the status quo pending inter parties hearing, an omission which was exposed the applicant to irreparable loss. e. That the Honorable court be pleased to direct the Chief Magistrate’s court at Eldoret to urgently hear and determine the applicant’s pending application dated 16th October, 2025 on a priority basis, or in the alternative, this Honorable court do itself issue appropriate interim relief of safeguard the applicant’s proprietary rights pending such hearing. f. That the Honorable court be pleased to issue such further or other orders as it may deem fit. g. That costs of this application be in the cause. MISC. CIVIL APPLICATION NO. E340 OF 2025 2 2. The application is anchored on grounds that can be summarized as hereunder. 3. That this Honorable Court is vested with the constitutional and supervisory mandate to intervene and ensure that subordinate courts do not, through procedural rigidity or inaction, defeat substantive justice. That on the 11th day of October 2025, the Applicant, an eighty (80) year old widow, was unlawfully deprived of five (5) cows by persons identifying themselves as Benwill Traders Auctioneers, acting under the instructions of Starways Capital Limited, who purported to be executing recovery orders issued in Eldoret CMCC Miscellaneous Application No. E242 of 2025. That the Applicant was at no time a party to those proceedings, had never guaranteed any borrower, and had never pledged her livestock as security thereunder. 4. That the Applicant promptly reported the unlawful seizure at Mosoriot Police Station, the same being recorded under OB No. 09/11/10/2025 at 1118 hours, yet to the date of filing this application, no recovery or intervention had been made by the police, leaving the Applicant wholly without protection or recourse. That upon filing a Certificate of Urgency and Notice of Motion dated 16th October 2025 seeking injunctive and preservatory relief, the Chief Magistrate declined to certify the matter as urgent on 21st October 2025 and instead fixed hearing for the 28th day of November 2025, a full month later. That the effect of this decision was not only to refute the urgency of the matter, but to unjustifiably adjourn the Application for one month, thereby allowing the continued deprivation of the Applicant's property without hearing her, in violation of her rights under Articles 40, 47 and 48 of the Constitution of Kenya. 5. That the resultant order of the subordinate court was concerningly silent on the Applicant's prayers for interim relief and made no direction to maintain the status quo, effectively leaving the subject livestock unprotected and at imminent risk of sale or slaughter. That MISC. CIVIL APPLICATION NO. E340 OF 2025 3 the livestock, being moveable property and easily disposable through sale or slaughter, were at immediate risk of destruction, and any further delay by this Honorable Court would permanently extinguish the Applicant's proprietary rights under Article 40 of the Constitution. That the subordinate court's failure to grant even the neutral and preservatory orders sought, including orders restraining disposal of the livestock, directing their recovery, or placing them under safe custody at Mosoriot Police Station pending hearing, amounted to an improper exercise of discretion and had the effect of defeating the very substratum of the suit, rendering any eventual hearing nugatory. 6. That the combined effect of police inaction and the subordinate court's refusal to urgently safeguard the subject matter had left the Applicant wholly unprotected and vulnerable to continuing constitutional violations, rendering this Honorable Court her remaining anchor for the fair administration of justice. 7. The 1st and 2nd Respondents filed grounds of opposition dated 24th October, 2025 in which they raised the following grounds: a. That the applicant lacks the locus standi to file the instant application as she is not a party to the application dated 3 rd October, 2025 in Eldoret Chief Magistrate Miscellaneous Application No. E242 of 2025. b. That the applicant has not met the threshold for grant of the reliefs sought. c. That the application is frivolous, vexatious and an abuse of the court process. d. That granting the prayers sought would be a waste of the precious judicial time as the application dated 16th October, 2025 in Eldoret Chief Magistrate Miscellaneous Application No. E242 of 2025 has been overtaken by events as the cattle which were attached were disposed of long before the application was filed. MISC. CIVIL APPLICATION NO. E340 OF 2025 4 e. That granting the prayer sought would be a waste of the precious judicial time as the application dated 16th October, 2025, in Eldoret Chief Magistrate Miscellaneous Application No. E242 of 2025 is fatally defective for being filed contrary to the mandatory provisions of section 19 of the Civil Procedure Act and Order 3 Rule 1 of the Civil Procedure Rules, 2010, as it is not anchored in a suit as the prayers sought are final in nature. 8. In response to the grounds of opposition, the applicant filed a replying affidavit in which he stated as follows: a. That in response to paragraph 1 of the said Grounds, I categorically deny the allegation that I lack locus standi. The same is an outright falsehood and a deliberate attempt to mislead this Honorable Court. I was duly enjoined as an Interested Party in Eldoret CM Misc. Application No. E242 of 2025, a fact clearly borne out by the lower court record. b. That the 2nd Respondent, Starways Capital Limited, through its agents and the 1st Respondent Benwill Traders Auctioneers, through an Application dated 3rd October 2025 (filed on 6th October 2025), obtained ex parte orders on 9th October 2025 in the subordinate court for repossession of alleged securities under a Letter of Instruction dated 25th September 2025, issued to the 3rd Respondent herein, Mary Chelimo who falsely listed the Applicant as a Guarantor with the subject matter of the application, the five cows, as security. To note also is that the Applicant's name was nowhere on the court record file in Eldoret CM Misc. Application No. E242 of 2025, for the 1st and/or the 2nd Respondents to warrant seizing her cattle. c. That the said Letter of Instruction is substantively and fatally defective in law, as it purports to be issued under the repealed Chattels Transfer Act (Cap 28), a substantive law, whereas the governing statute for movable security interests in Kenya is MISC. CIVIL APPLICATION NO. E340 OF 2025 5 the Movable Property Security Rights Act, 2017. All actions based on such a repealed law are void ab initio. d. That the letters of instruction cited the Chattels Transfer Act, which this Court must take judicial notice was repealed by the Movable Property Security Rights Act 2017. By Section 60(1)(a) of the Evidence Act we urge the court to take notice of the appropriate laws for Moveable Property it provides verbatim that: - "The courts shall take judicial notice of all written laws, and all laws having the force of law now or hereafter in force in Kenya." e. That the subordinate court failed to observe the defective nature of the purported letter of intent, issued against the 3rd Respondent herein which was substantively flawed and in contravention of the law. The said letter did not constitute a valid or lawful instruction capable of grounding execution or attachment under the Auctioneers Act and Rules. It neither emanated from a lawful decree nor complied with the mandatory requirements under Rule 12 of the Auctioneers Rules, 1997, nor did it meet the threshold of a lawful directive under the Civil Procedure Act and Rules. Consequently, any action founded upon such a document was irregular, null, and devoid of legal effect. f. That further under the Auctioneer Rules of 1997, Rule 12(b) require that a lawful proclamation must distinctly describe the property to be attached and give sufficient particulars for its identification. g. That the Proclamation relied upon to give Orders that led to irregular Orders by the Lower court, in herein fails to describe the crucial and sensitive nature of the movable property being livestock (cows); it does not indicate the exact number of cows, their breed (e.g., Friesian, Ayrshire, Zebu, etc.), their gender or physical markings, and it does not list the Applicant as a MISC. CIVIL APPLICATION NO. E340 OF 2025 6 Guarantor or owner anywhere on the face of the document. Such an imprecise and generic proclamation is incapable of legal effect, renders the purported attachment void ab initio, and violates the procedural safeguards intended to prevent wrongful seizure of property belonging to non-debtors. h. That more gravely, the said 2nd Respondent, Starways Capital Limited, is not licensed by the Central Bank of Kenya (CBK) as required under the Central Bank of Kenya (Digital Credit Providers) Regulations, 2022, made pursuant to the Central Bank of Kenya (Amendment) Act, 2021. i. That consequently, 2nd Respondent's entire lending and enforcement activities are illegal and contrary to public policy. The absence of a CBK licence means the 2nd Respondent is unlawfully providing financial services to members of the public, including myself, in contravention of Regulations 4 and 5, of the Central Bank of Kenya (Digital Credit Providers) Regulations, 2022 which prohibit the operation of any digital credit provider without prior authorization by the Central Bank. j. That for purposes of the regulatory framework under the Central Bank of Kenya (Digital Credit Providers) Regulations, 2022, a 'digital credit business' has been described as 'the business of providing credit facilities or loan services through a digital channel (internet, mobile devices, computer devices, applications or other digital systems as may be prescribed)'. Accordingly, a 'digital credit provider' is any person or entity engaging in such business or holding itself out as doing so, and such business may not be carried on in Kenya unless licensed under Regulation 4(1) of the Regulations. k. That even if monies were disbursed to the 3rd Respondent in cash, the 2nd Respondent's business model and ongoing lending activities fall within the CBK regulatory perimeter for financial MISC. CIVIL APPLICATION NO. E340 OF 2025 7 service providers. The absence of licensing renders such activity illegal under the CBK Act and relevant regulations, including but not limited to the Digital Credit Providers Regulations, 2022. l. That the Applicant shall, where necessary, seek leave of this Honorable Court to enjoin the Central Bank of Kenya as an Interested Party, to assist the Court in determining the regulatory status and compliance position of the 2nd Respondent. m. That this illegality is at the core of the dispute herein: an unlicensed lender issued defective instructions to a negligent auctioneer, leading to the unlawful seizure of my livestock without any valid legal basis. Both parties are therefore jointly and severally liable for the wrongful acts complained of. n. That in response to paragraph 4 of the Grounds of Opposition, the Respondents' claim that the livestock were "already sold" long before my Application is wholly unsubstantiated and unsupported by any evidence of sale. No advertisement, valuation, bidding record, receipt, or return of sale has been filed before any court as required by Rule 15 of the Auctioneers Rules, 1997, which provides: - "An auctioneer shall immediately after executing a warrant or letter of instruction make a return of the manner in which it has been executed and file such return with the court." o. That up to the date of filing this Application the Respondent has failed to file any return with the lower court of the manner of execution as provided under Rule 15 of the Auctioneers Rules, 1997. p. That further, the 1st Respondents also failed to comply with Rule 12 of the Auctioneers Rules, 1997, which requires at least seven (7) days' notice of proclamation prior to attachment and sale, and a clear description and valuation of each item. Their MISC. CIVIL APPLICATION NO. E340 OF 2025 8 inventory simply listed "cows" by colour, without identification, age, tag, or valuation, an egregious breach of the law. q. That the 1st Respondent was in direct contravention of Rule 12 of the Auctioneers Rules, 1997, by failing to do due diligence and properly ascertain whether the cows actually belonged to the 3rd Respondent, herein Mary Chelimo, before seizure and disposal. r. That the Respondents' ex parte execution was procured and completed within three days, yet my own urgent Application in the same court was deferred for over a month without preservation orders, thereby defeating the principles of fairness, equality of arms, and expeditious justice as guaranteed under Articles 47, 48, and 159(2)(d) of the Constitution and Sections 1A and 1B of the Civil Procedure Act. s. That the Respondents' actions collectively amount to an abuse of process and a deliberate violation of my constitutional right to property under Article 40 and the right to fair administrative action under Article 47 of the Constitution. t. That this Honorable Court, being the High Court of Kenya, is constitutionally vested with supervisory jurisdiction over subordinate courts and tribunals under Article 165(6) and (7) of the Constitution. This jurisdiction is not merely corrective but also protective in nature, intended to safeguard the rule of law, prevent abuse of judicial process, and secure the public interest against systemic injustices. u. That in exercising such jurisdiction, the Court is urged to open its wide arms in entertaining the present Application, for the issues herein transcend the Applicant's personal grievance and touch on public interest specifically, the operations of unlicensed digital credit providers and auctioneers who act unprocedural and negligently in disregard of statutory safeguards. MISC. CIVIL APPLICATION NO. E340 OF 2025 9 v. That allowing such actors to continue unchecked would expose vulnerable members of the public to harm, harassment, and unlawful deprivation of property. It is therefore in the wider interest of justice, accountability, and public order that this Honorable Court asserts its supervisory authority and intervenes decisively. Analysis and determination 9. I have carefully considered the application, the supporting affidavits, the grounds of opposition, and the replying affidavit. The application raises three principal and interrelated questions. First, whether the supervisory jurisdiction of this Court under Article 165(6) and (7) of the Constitution of Kenya has been properly and lawfully invoked. Second, whether the Applicant has exhausted the adequate alternative remedies available to her before approaching this Court. Third, and most fundamentally, whether the reliefs sought remain capable of being granted having regard to the events which overtook this application before it was filed. The Scope and Proper Invocation of the Supervisory Jurisdiction 10. The supervisory jurisdiction of the High Court is constitutionally entrenched. Article 165(6) of the Constitution of Kenya, 2010 provides as follows: “The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.” Article 165(7) further provides: “For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any MISC. CIVIL APPLICATION NO. E340 OF 2025 10 direction it considers appropriate to ensure the fair administration of justice.” 11. The supervisory jurisdiction, as expressed in these two constitutional provisions, is a wide but carefully circumscribed power. It is not a general appellate jurisdiction. It is not a mechanism for correcting every interlocutory decision of a subordinate court with which a dissatisfied litigant may disagree. Its animating purpose is to correct jurisdictional error, fundamental procedural illegality, violation of natural justice, or a failure of process that would, if unchecked, produce a miscarriage of justice of constitutional dimension. The mere fact that a subordinate court has exercised its discretion in a manner adverse to a particular party does not constitute a jurisdictional error warranting supervisory intervention by this Court. 12. The Supreme Court of Kenya addressed the foundational question of jurisdiction in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others, Supreme Court Petition No. 2 of 2012 [2012] eKLR, where it held as follows: “A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.” 13. While that was in the context of an appellate jurisdiction, its logic applies to the supervisory jurisdiction of this Court. It is conferred for a defined constitutional purpose, and the Court must be careful not to exercise it beyond that purpose or to treat it as a general safety net for litigants dissatisfied with case management decisions of subordinate courts. MISC. CIVIL APPLICATION NO. E340 OF 2025 11 14. In the present application, the conduct aggrieved of is that the Honourable Chief Magistrate, having received the Applicant’s application dated 16th October 2025, declined to certify it as urgent on 21st October 2025 and fixed the hearing for 28th November 2025, approximately one month later. This is characterised by the Applicant as an omission that exposed her to irreparable loss and constituted a violation of her constitutional rights. Let me at this point state that a judicial officer’s decision as to the urgency of a matter, and the consequent fixing of a hearing date within the calendar of the court, is a discretionary case management act that falls squarely within the jurisdiction of the subordinate court. It is not jurisdictional excess. It is not a denial of natural justice, since the matter was accorded a hearing date. It remains, at its core, a judicial act within the ordinary exercise of the trial court’s power, and no degree of dissatisfaction with the outcome can transform it into a jurisdictional defect amenable to supervisory correction by this Court. 15. It is a firmly established principle that this Court will be slow to exercise its supervisory jurisdiction where an adequate alternative remedy exists and has not been exhausted by the applicant. 16. In the present matter, the Applicant filed an application dated 16 th October 2025 in CMCC Misc. Application No. E242 of 2025. That application was pending hearing before the Chief Magistrate on 28th November 2025. The subordinate court was therefore fully seized of the matter and retained jurisdiction to hear and determine the Applicant’s grievance, including to grant all the substantive reliefs she sought at that level. The Applicant did not await the outcome of that hearing. She did not appeal the decision declining to certify urgency, although such an avenue was available to her. She did not seek revision under Section 80 of the Civil Procedure Act, which provides that the High Court may call for the record of any case decided by a subordinate court and make such order as it thinks fit. Instead, she MISC. CIVIL APPLICATION NO. E340 OF 2025 12 moved directly to this Court, characterising a routine case management decision as a constitutional emergency requiring urgent supervisory intervention. 17. The Applicant’s approach in this matter is precisely what the principle of exhaustion guards against. The proper avenue was to pursue the pending application in the Chief Magistrate’s Court, and if the outcome was adverse, to challenge it through the appropriate processes of revision or appeal. The direct invocation of the supervisory jurisdiction of this Court, at the interlocutory case management stage, is not warranted on the facts presented. Is the application moot? 18. The primary substantive relief sought in prayer 2 is a conservatory order restraining the Respondents from selling, slaughtering, or otherwise disposing of the five cattle allegedly belonging to the Applicant. The 1st and 2nd Respondents, in their grounds of opposition, stated unequivocally on record that the livestock were disposed of long before the present application was filed. The Applicant’s replying affidavit does not squarely controvert that assertion with direct evidence. The averment in the replying affidavit that no return of execution has been filed as required by Rule 15 of the Auctioneers Rules 1997 neither confirms nor denies whether the disposal occurred. 19. Courts of law do not make orders that are incapable of enforcement or compliance, and they do not issue injunctive or conservatory relief over a subject matter that no longer exists in a form capable of being preserved. 20. The applicable legal test for interlocutory injunctive relief was authoritatively settled by the former East African Court of Appeal in Giella v Cassman Brown & Co. Ltd [1973] EA 358, where the Court laid down three cumulative conditions in the following terms: MISC. CIVIL APPLICATION NO. E340 OF 2025 13 “Firstly, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.” 21. The second limb of the Giella test is of directly applicable to the instant application. If the cattle have already been disposed of, then any injury to the Applicant is, by definition, already converted into a monetary loss that is fully compensable in damages. The Applicant, should she establish at the hearing of her application in CMCC Misc. Application No. E242 of 2025 that her livestock were wrongfully seized, that she was not a party to the proceedings, had not pledged the livestock as security, and had not guaranteed any borrower, is entitled to recover their full market value, together with any consequential loss, as damages for conversion and trespass to goods. That is a complete and legally adequate remedy. It is settled law that a court will not grant injunctive relief where damages would constitute an adequate remedy. 22. The Applicant cannot simultaneously maintain, on the one hand, that the livestock are at imminent risk of being sold or slaughtered and, on the other, that they have been moved from Mosoriot to an undisclosed location between Mosoriot and Kapsabet. These are inconsistent positions. What is clear is that the subject matter of the primary relief is no longer available for preservation by this Court. Granting the conservatory order sought would serve no practical purpose and would be an empty exercise of judicial authority. This Court accordingly declines to do so. 23. The question of whether the Applicant has the requisite locus standi to invoke the supervisory jurisdiction of this Court over proceedings to MISC. CIVIL APPLICATION NO. E340 OF 2025 14 which she was not a named party is a matter that need not detain this Court, since the grounds of mootness and non-exhaustion of alternative remedies are sufficient to dispose of this application in its entirety. What this Court observes, without expressing any concluded view, is that the subordinate court remains fully seized of the Applicant's application filed on 16th October 2025, and it is before that forum that the question of standing, as well as the weighty substantive complaints touching on the legality of the repossession exercise, the validity of the Letter of Instruction under the current law governing movable security interests, and the alleged procedural defects in the proclamation, ought to be fully ventilated and determined inter partes. 24. In the result, the Notice of Motion dated 16th October 2025 is hereby dismissed. The application pending in Eldoret CMCC Misc. Application No. E242 of 2025 shall proceed to hearing as shall be scheduled, and the Applicant shall have full liberty to advance therein all the arguments raised in the present application. 25. The Costs of this application shall be in the cause. 26. Orders accordingly. DELIVERED, DATED AND SIGNED AT ELDORET ON THIS 21ST DAY OF APRIL, 2026 ………………………………… R. NYAKUNDI JUDGE MISC. CIVIL APPLICATION NO. E340 OF 2025 15